JAYAMUTHU vs. STATE ELECTION COMMISSION FOR COOPERATION

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2017 PRESENT THE HON'BLE MR.SUBHRO KAMAL MUKHERJEE, CHIEF JUSTICE AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

WRIT APPEAL Nos.3482/2015 c/w 4514/2015, 4515/2015, 4556/2015 (CS-EL/M)

IN W.A.No.3482/2015

BETWEEN:

JAYAMUTHU S/O CHIKKENEGOWDA, AGED ABOUT 33 YEARS, R/O HAROHALLI, SULLERI POST, CHENNAPATNA TALUK, RAMANAGARA DISTRICT – 571 501. ... APPELLANT

(BY SRI: DEVI PRASAD SHETTY, ADVOCATE)

AND:

HOUSING FEDERATION, 2ND FLOOR, KARIYAPPA ROAD, BASAVANAGUDI, BANGALORE – 560 004. BY ITS SECRETARY.

RETURNING OFFICER APPOINTED FOR BANGALORE CITY,

BANGALORE RURAL AND RAMANAGARA

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DISTRICT MILK PRODUCERS

CO-OPERATIVE UNION LTD., DR. M.H.MARIGOWDA ROAD, BANGALORE – 560 029.

DISTRICT MILK PRODUCERS

CO-OPERATIVE UNION LTD., DR. M.H.MARIGOWDA ROAD, BANGALORE – 560 029, REPRESENTED BY ITS MANAGING DIRECTOR.

(BY SRI: M. KESHAVA REDDY, ADVOCATE FOR R-1; SRI V.G. BHANU PRAKASH, ADDL. GOVT. ADVOCATE FOR R-2 & R-3; SRI. ABHINAV R., ADVOCATE FOR R-4; SRI. DAYANAND S. PATIL, ADVOCATE FOR R-5; SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W SRI. M.R. RAJA GOPAL & H.N. BASAVARAJU, ADVOCATES FOR C/R-6)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.22110/2014 DATED 03/09/2015 AND ETC.

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IN W.A.No.4514/2015

BETWEEN:

RAMACHANDRA S/O LATE THIMMEGOWDA, AGED ABOUT 52 YEARS, R/AT HOTEGANAHOSAHALI

CHAKERE POST, MALLUR HOBLI,

CHENNAPATNA TALUK,

RAMANAGARA DISTRICT – 571 112. ... APPELLANT

(BY SRI: D.L.N. RAO, SENIOR ADVOCATE A/W SRI. ANIL KUMAR R., ADVOCATE)

AND:

HOUSING FEDERATION,

2ND FLOOR, KARIYAPPA ROAD,

BASAVANAGUDI – 560 098.

BANGALORE, BY ITS SECRETARY.

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HOTTIGANAHOSAHALLI VILLAGE,

CHENNAPATNA TALUK,

RAMANAGARA DISTRICT – 571 511,

REPRESENTED BY ITS SECRETARY. ... RESPONDENTS

(BY SRI: M. KESHAVA REDDY, ADVOCATE FOR R-1; SRI V.G. BHANU PRAKASH, ADDL. GOVT. ADVOCATE FOR R-2 & R-3; SRI. ABHINAV R., ADVOCATE FOR R-4; SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W SRI. M.R. RAJA GOPAL, ADVOCATE FOR IMPLEADING APPLICANT on I.A.IV/2015)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 41478/2015 DATED 26/09/2015 AND ETC.

IN W.A.No.4515/2015

BETWEEN:

HAROHALLI MILK PRODUCERS CO-OPERATIVE SOCIETY LTD., R/O HAROHALLI, SULLERI POST, VIROPAKSHI HOBLI, CHENNAPATNA TALUK, RAMANAGARA DISTRICT, BY ITS SECRETARY SHRI. PUTTASWAMY S/O THAMME GOWDA, AGED ABOUT 45 YEARS.

... APPELLANT

(BY SRI: B.M. SHYAM PRASAD, SENIOR ADVOCATE A/W SRI. DARSHAN D., ADVOCATE)

AND:

HOUSING FEDERATION,

2ND FLOOR, KARIYAPPA ROAD, BASAVANAGUDI,BANGALORE, BY ITS SECRETARY.

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DISTRICT MILK PRODUCERS

CO-OPERATIVE UNION LTD.,

DR. M.H. MARIGOWDA ROAD, BANGALORE – 560 029.

DISTRICT MILK PRODUCERS

CO-OPERATIVE UNION LTD., DR. M.H. MARIGOWDA ROAD, BANGALORE – 560 029. REPRESENTED BY ITS

MANAGING DIRECTOR.

... RESPONDENTS

(BY SRI: M. KESHAVA REDDY, ADVOCATE FOR R-1; SRI V.G. BHANU PRAKASH, ADDL. GOVT. ADVOCATE FOR R-2 & R-3; SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W SRI. M.R. RAJA GOPAL, ADVOCATE FOR C/R-5; SRI. ABHINAV R., ADVOCATE FOR R-6)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED

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IN THE WRIT PETITION 22110/2014 DATED 03/09/2015 AND ETC.

IN W.A.No.4556/2015

BETWEEN:

PRODUCER’S CO-OPERATIVE SOCIETY,

MUDAGERE VILLAGE,

CHENNAPATNA TALUK,

RAMANAGARA DISTRICT – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

MALLURUPATNA,

CHENNAPATNA TALUK,

RAMANAGARAM – 571 511.

PUTTEGOWDANA DODDI,

CHIKKABOREGOWDANA DODDI,

CHENNAPATNA TALUK,

RAMANAGARAM – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

HAROHALLI DODDI, SULLERI POST, CHENNAPATNA TALUK,

RAMANAGARAM – 571 511.

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PRESIDENT OF H. MOGENAHALLI MILK

PRODUCER’S CO-OPERATIVE SOCIETY,

H. MOGENAHALLI,

CHENNAPATNA TALUK,

RAMANAGARA – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

BELEKERE, CHENNAPATNA TALUK,

RAMANAGARA DISTRICT – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

J. BYADARAHALLI,

CHENNAPATNA TALUK, RAMANAGARA DISTRICT – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

CHEKKERE, CHENNAPATNA TALUK, RAMANAGARA DISTRICT – 571 511.

PRODUCER’S CO-OPERATIVE SOCIETY,

HULUVADI, CHENNAPATNA TALUK, RAMANAGARA DISTRICT – 571 511. ... APPELLANTS

(BY SRI: D.N. NANJUNDA REDDY, SENIOR ADVOCATE A/W NISHANTH A.V., ADVOCATE)

AND:

HOUSING FEDERATION,

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2ND FLOOR, KARIYAPPA ROAD,

BASAVANAGUDI,

BANGALORE – 560 004 BY ITS SECRETARY.

RAMANAGARA DISTRICT – 571 511.

CHENNAPATNA TALUK – 571 511. ... RESPONDENTS

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(BY SRI: M. KESHAVA REDDY, ADVOCATE FOR R-1; SRI V.G. BHANU PRAKASH, ADDL. GOVT. ADVOCATE FOR R-2 & R-3; SRI. ABHINAV R., ADVOCATE FOR R-4; SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W SRI. M.R. RAJA GOPAL, ADVOCATE FOR C/R-6; SRI. M. VEERABHADRAIAH & V.SPOORTHY, ADVOCATES FOR IMPLEADING APPLICANTS ON I.A.VII/2015 & SRI. S. RAJU, ADVOCATE FOR IMPLEADING APPLICANT ON I.A.VIII/2015)

*****

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 22110/2014 DATED 03/09/2015 AND ETC.

THESE

APPEALS HAVING BEEN RESERVED ON 17/03/2017 AND IT BEING LISTED FOR PRONOUNCEMENT OF JUDGMENT TODAY, NAGARATHNA J., PRONOUNCED THE FOLLOWING:

J U D G M E N T

These writ appeals assail the order of the Hon’ble Single Judge dated September 03, 2015 passed in W.P.No.22110/2014.

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by Harohalli Milk Producers Co-operative Society Limited, assailing the very same order of the Hon’ble Single Judge, being aggrieved by the consequent directions issued subsequent to the dismissal of the aforesaid writ petition. W.A.No.4556/2015 is filed by appellants who are not parties in the writ petition, being Presidents of certain Milk Producers Co- operative Societies. The said societies are members of the Bangalore City, Bangalore Rural and Ramanagar District Milk Producers Co-operative Union Limited. Writ Appeal No.4514/2015 is filed by Sri Ramachandra, being aggrieved by the order dated September 26, 2015 passed in W.P. No.41478/2015. By the said order the Hon’ble Single Judge has dismissed the writ petition on the premise that the election was conducted in terms of Annexure-D therein, pursuant to the order dated September 03, 2015 passed in W.P.No.22110/2014.

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W.P.No.41478/2015, the facts shall be narrated having regard to W.A.No.3482/2015 filed by the petitioner in W.P.No.22110/2014, for a better understanding of the controversy.

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was also mentioned herein. At that stage, respondent No.6 filed a complaint before the second respondent stating that respondent No.5-Society was not eligible to contest in the election as the said society was a newly constituted society and it could not be classified in the ‘B’ category. Further, the audit report of the said society for the year 2012-13 had not yet been considered. On that complaint, the Returning Officer sought clarification from the first respondent. Notice was issued to the petitioner as well as respondent No.5. Written arguments were submitted. Thereafter, respondent No.1 passed an order holding that the societies which had conducted audit for the year 2013-14 could furnish details of the same. Hence, the dispute with regard to the audit was sorted. But, on the date of scrutiny of the nominations, respondent No.6 persisted in his complaint, objections by respondent No.5 were heard. Respondent No.5 was also heard through its advocate as well as the petitioner. Thereafter, Annexure-H dated May 20, 2015 was passed to the effect that the petitioner had

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failed to comply with the provisions of the Co- operative Societies Act, 1959 and the bye laws of the 4th respondent - Bangalore City Milk Union and therefore his nomination was rejected. Being aggrieved by the rejection of his nomination he preferred the writ petition assailing the order of rejection of his nomination.

in the election of respondent No.4 – Milk Union to be held on May 24, 2014, so that he could contest in the election. However, the result of the election was subject to the decision of the writ petition. Pursuant to the aforesaid interim order, poll was held and the petitioner was successful in the said election.

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nisi was issued, question of law to be considered in the writ petition was also formulated. But by the impugned order dated September 03, 2015 passed by the Hon’ble Single Judge, the writ petition has been dismissed on the ground that it is not maintainable on account of availability of an alternative remedy. By virtue of the dismissal of the writ petition, the interim order dated May 22, 2015 has also dissolved. Therefore, the success of the petitioner in the election pursuant to the interim order has come to naught as a direction was issued to the effect that all proceedings subsequent to May 22, 2014 was quashed. The official respondents were directed to continue the election process from that date onwards. Being aggrieved by the dismissal of the writ petition and the consequent direction issued by the Hon’ble Single Judge, these writ appeals have been preferred.

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September 27, 2015 pursuant to the directions of the Hon’ble Single Judge. Therefore, the holding of poll was permitted, but it was directed that the result ought not to be announced. The election process was completed pursuant to the direction issued by the Hon’ble Single Judge on dismissing the writ petition which had assailed the rejection of the nomination of the petitioner and on the basis of order dated September 26, 2015 passed in these appeals. Thereafter, writ appeals were listed on several dates and ultimately they were heard finally on March 17, 2017. In the interregnum, respondent No.6 Sri S.Lingesh Kumar, had approached the Hon’ble Supreme Court assailing order dated September 26, 2015 referred to above. The Special Leave Petition was disposed of with a request to this court to dispose of W.A.No.3482/2015 expeditiously and preferably within a period of eight weeks from February 17, 2014.

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assume office and he has been the President of the 3rd respondent – Milk Union and thereafter, on July 08, 2014, question for consideration was formulated in the following manner;

“Whether the election officer was justified in rejecting the petitioner’s nomination on the premise that the 5th respondent-society had not subjected its account to statutory audit as on the date of filing of nominations”

In fact on June 04, 2015 rule nisi was issued in the writ petition. But by the impugned order, the writ petition has been dismissed on the ground of maintainability on account of availability of an alternative remedy so as to challenge the rejection of nomination by way of an election petition. According to learned senior counsel, the dismissal of the writ petition on the ground of maintainability after the same was pending for quite sometime and in fact question of law being raised and rule nisi being issued, was improper. Learned senior counsel contended that the Hon’ble Single Judge did not

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adjudicate the writ petition on merits, despite the framing of a question of law for consideration. That issuance of rule nisi could not have been discharged on the premise that the writ petition was not maintainable on account of the availability of an alternative remedy. That, when a nomination is improperly rejected, the remedy by way of writ petition before the actual poll is also available. In support of his submissions, learned senior counsel has relied upon the following decisions namely, i) State of H.P and Others vs. Gujarat Ambuja Cement Ltd. and Another [(2005) 6 SCC 499]. ii) L.Hirday Narain vs. Income Tax Officer, Bareilly [1970(2) SCC 355]. iii) Kanak (Smt.) and another vs. U.P. Avas Evam Vikas Parishad and Others [(2003) 7 SCC 693] iv) Nandhi Minerals vs. State of Karnataka [SCC Online KAR 3174] v) Pundalik vs. State of Maharashtra and Others [(2005) 7 SCC 181] vi) (2008) 12 SCC 675 vii) (2014) 16 SCC 623

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viii) State of Uttar Pradesh and Another vs. Uttar Pradesh Rajya Khanu Vikas Nigama Sangharsh Samiti

and Others [(2008) 12 SCC 675]

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Single Judge directed that all further proceedings and all actions subsequent to May 22, 2014 i.e. the date on which interim order was granted, are quashed. Hon’ble Single Judge further directed that the election process be continued from May 22, 2014 onwards. Learned senior counsel contended that the bye-laws have been amended on August 22, 2015 to the effect that only Presidents of the co-operative societies are now eligible to vote, but in the instant case on a perusal of the voters list, it would become clear that 66 out of 134 persons are not Presidents, but they are directors and were ineligible to cast their vote in the poll held on September 27, 2015. By virtue of the amendment made to the bye-laws, the directors were not eligible to participate in the elections. That in respect of 22 other societies, the voters did not continue as directors, but they were permitted to vote in the election held pursuant to the dismissal of the writ petition. Thus, in all 88 persons, out of 134 were ineligible to participate in the election process and therefore the poll held subsequent to the directions of

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the Hon’ble Single Judge and the order of Division Bench in these appeals is vitiated. Although voting has taken place, the result has not yet been declared. According to learned senior counsel, Hon’ble Single Judge therefore, was not right in directing the completion of the electoral process without taking note of the subsequent events particularly, the amendment made to the bye-laws. He therefore submitted that a direction be issued to redo the entire exercise.

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maintainable. Otherwise, the person aggrieved by the improper rejection of his nomination would be unable to participate in the poll and thereby prejudiced. In support of his submissions, he placed reliance on ILR 1991 KAR 4421, (L.Ramakrishnappa vs. Presiding Officer) and ILR 1992 KAR 979 (Nanjundaswamy vs. Assistant Registrar of Co- operative Societies).

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made to the bye-laws can have no effect on the electoral process in the instant case even if the persons who were eligible to vote in such election became ineligible subsequently, by an amendment made to the bye-laws, but subsequent to the commencement of the election process. That would not have a bearing in adjudicating upon the petitioner’s grievance with regard to the improper rejection of his nomination. He submitted that the directions issued by the Hon’ble Single Judge on dismissing the writ petitions on the ground of maintainability are in accordance with law and would not call for any interference in these appeals. Learned senior counsel placed reliance on the following decisions namely, K.T.Muthuswamy vs. K.Natarajan [1988 (1) SCC 572] and N.P.Ponnuswami vs. Returning Officer, Namakkal [AIR 1952 SC 64] and other decisions to contend that the writ petition was not maintainable.

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noted that the writ petition was subsequently ordered to be considered on a question formulated and in fact rule nisi was also issued. Subsequently by order dated September 03, 2015 the writ petition has been dismissed on the ground of maintainability by directing that the election process be completed from the stage it was on May 22, 2014.

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or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 329(b) excludes the jurisdiction of courts to entertain the matter relating to election disputes prior to the conclusion of the election process. Thus, an election can be challenged in the manner laid down in law made by the appropriate legislature. The term ‘election’ has been interpreted by the Hon’ble Supreme Court in N.P. Ponnuswami vs. Returning Officer, Namakkal [AIR 1952 SC 64], to connote the entire procedure to be gone through to return a candidate. It has been held therein that rejection or acceptance of nomination is included in the term ‘election’.

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of a State applies to all other elections including the election in controversy in the instant case and, if so, whether the only remedy for an aggrieved party is an election petition. While considering the same, the question of alternative remedy or relief being available to a party, would act as a bar to avail the extraordinary remedy by way of a writ petition under Article 226 of the Constitution would also arise.

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expressly does not say so. However, the powers under Article 226 of the Constitution confers extensive discretion in the High Court and when discretion is exercised it is on well established principles such as delay, suppression of facts, disputed question of fact, futile writs etc. The ground of availability of an alternative remedy is also one such reason not to exercise discretion under Article 226 of the Constitution and refusal to grant any relief if the aggrieved party can have recourse to an alternative or adequate remedy elsewhere.

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noted, the doctrine of alternative remedy is only a rule of discretion and not a rule of law, but the High Court can always issue a writ, despite the availability of an alternative remedy, when there is a patent want of jurisdiction or, when there has been denial of natural justice before the court of summary jurisdiction or, whether when the vires of an Act is impugned or, when there is an allegation that the fundamental right has been infringed. Further, if the alternative remedy is not adequate, then the High Court would not refuse to entertain a writ petition. In the aforesaid contingencies, even if the alternative remedy is available, a writ petition would be entertained.

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was maintainable since it was against an improper rejection of a nomination paper and not a case where there has been an improper acceptance of nomination paper, in which event possibly the election petition was a more appropriate remedy. Secondly, the contention is that appellant’s writ petition was entertained, interim order was granted, question of law was framed, rule nisi was issued and hence the writ petition could not have been dismissed summarily on the ground of maintainability without considering the merits of the matter.

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party would be entitled to participate in the election. However, on getting the election of the successful party-whose nomination was illegally accepted-being set aside in a properly constituted election petition, the aggrieved party would get the relief. But the point is, whether, because of the aforesaid difference, it can be held that in the case of an improper rejection of nomination, a writ petition could be filed by the aggrieved party and not at the instance of an aggrieved party, when it is a case of improper or illegal acceptance of a nomination. We do not think that such distinction could be made for the purpose of Article 226 of the Constitution. In either case, whether it is a case of improper acceptance of a nomination or improper rejection of a nomination, the same would require proof of facts which cannot be adjudicated upon in a writ petition, merely on the basis of affidavit and counter affidavits. As the reasons for improper rejection or improper acceptance of nomination could be for myriad reasons and merely because in a particular case proof of disputed question

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of facts would not arise, it cannot be held that the writ petition could be maintained. Therefore, when once the election process has commenced, courts ought not to interfere in the election process and particularly the High Court under Article 226 of the Constitution should not interfere with an election process. While saying so, we rely upon an early decision and time tested precedent of the Hon’ble Supreme Court in the case of N.P.Ponnuswami, which case arose precisely on the question of improper rejection of nomination of a candidate therein. Though in that case Article 329(b) of the Constitution applied, nevertheless the principles propounded therein would apply with all force to all elections.

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procedure prescribed by the Municipalities Act i.e. by means of an election petition presented in accordance with the provisions of that Act and in no other way. Thus, a post-election remedy by way of an election petition is in our view, an adequate remedy to give relief to an aggrieved party, as improper rejection or acceptance of the nomination of a candidate is always a ground to assail an election.

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the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ….. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.”

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co-operative society or a Union of Co-operative Societies, as in the instant case, nevertheless courts are loathe to exercise discretion and interfere in such matters prior to the completion of election process. In Sangram Singh vs. Election Tribunal, Kotah, [AIR 1955 SC 425], the Hon’ble Supreme Court has held that no legislature can impose limitations on the constitutional powers (under Article 226) but it is a sound exercise of discretion to bear in mind, the policy of the legislature to have disputes about the special rights decided as speedily as may be. Therefore, it is necessary to resolve election disputes speedily through the machinery of election petition and the court in exercise of its discretion should always decline to invoke its writ jurisdiction in an election dispute, if an alternative remedy of an election petition is available. The aforesaid observations laying down a salutary principle has been subsequently reiterated in a decision of the Supreme Court in S.T. Muthusamy vs. Natarajan, in which, the judgment of the High

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Court was set aside and the writ petition filed under Article 226 was dismissed.

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not grant a relief inter alia on the ground of existence of an alternative remedy but another thing to say that the writ petition was not maintainable at all. That when the matter is to be argued on merits after being entertained, it would not be proper to dismiss the writ petition on the ground of availability of an alternative remedy. That in the instant case, the Hon’ble Single Judge could not have done the same, is the submission of the learned senior counsel for the appellants.

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consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. That the said proposition has also been applied in several cases even if alternative remedy is available, but in the aforesaid case, the Hon’ble Supreme Court has categorically held that “in our judgment, however, it cannot be laid down as a proposition of law that when once a petition is admitted it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition and granted the relief to the petitioner.”

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Tax Officer, Bareilly, [1970(2) SCC 355], which arises under the Income Tax Act, 1922, has been pressed into service by the learned senior counsel for the appellant. It was observed therein that even though a revision application could have been moved for an order correcting the order of the Income Tax Officer under Section 35 of the aforesaid Act, but was not availed of, the High Court could have entertained the writ petition on merits. In other words, it could not be held that the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on merits. But the aforesaid observations now stand watered down in view of the judgment of the Hon’ble Supreme Court in State of Uttar Pradesh vs. Uttar Pradesh Rajya Khanija Vikas Nigama [(2008) 2 SCC 675], referred to above.

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preparation of list of voters, which is one of the stages of election. That in the instant case also, prior to the poll, this court could have considered the issue of rejection of nomination of the petitioner on merits. However, in our view, the said decision cannot apply to the instant case as in the aforementioned decision, dealt with an election to a co-operative society under the relevant rules, the Collector was obliged to effect change in the name of the representative or delegate entitled to vote when the same was intimated to the Collector by a co-operative society. The same not having been done, called for interference. The interference was at the stage of preparation of voters’ list and not with regard to rejection of a nomination as in the instant case. In M/s.Nandhi Minerals vs. State of Karnataka [2011 SCC Online Kar. 3174], a Division Bench of this court was of the view that the writ petition cannot be dismissed on the ground of availability of an alternative remedy when rule nisi had been issued. Further, in S.N.Srinivas Murthy vs. The Corporation of the City of Bangalore by its

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Commissioner [ILR 1998 Kar. 101], Hon’ble Single Judge of this court held that when an appeal was admitted, it could not be rejected on the grounds of alternative remedy after lapse of six years. Similarly, when a writ petition is admitted for final hearing notwithstanding the existence of an alternative remedy of an appeal, the same cannot be dismissed years later on the ground that the petitioners ought to have exhausted the alternative remedy. Reference has also been made to Gowtham Tendulkar vs. State of Karnataka [ILR 2000 Kar. 1343], wherein it has been observed that once the writ petition is entertained by the High Court, it is not desirable to dismiss the same on the ground that the petitioner has an alternative remedy. Reliance has also been place on L.Shivanna vs. State of Karnataka [ILR 1988 Kar.2121] wherein, it has been held that preparation of electoral rolls is not a process of election. A challenge to inclusion of ineligible persons in electoral roll not open to adjudication after election, the only remedy to the aggrieved citizen is under

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Article 226. The aforesaid decisions, in our view, do not further the case of the appellants in view of the latest dictum of the Hon’ble Supreme Court in State of U.P. vs. Uttar Pradesh Rajya Khanija Vikas Nigama.

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regulated by statutory provisions (other than the election to the Parliament and State Legislature), notwithstanding the existence of an alternative remedy by way of Election Petition, if violation of law is established. In other words, such a writ petition is maintainable. At the same time, the Division Bench has also held that “However, the jurisdiction of this Court under Article 226 being an extraordinary one, this Court as a general rule will not and should not entertain a Petition in matters connected with such elections even if any illegality is shown to have been committed, if the law provides an effective alternative remedy and the illegality is such in respect of which adequate relief could be granted in an Election Petition. In other words, this Court will not and should not entertain Writ Petition lightly, as held by the Supreme Court in the case of Muthusamy.” i.e. S.T.Muthusami vs. K.Natarajan and Others, [(1988) 1 SCC 572] cited above.

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divergence of opinion in the two judgments. According to the Full Bench, Maruthi’s case lays down the law as set out therein and B.Gurumallappa’s case is an illustration of the principle that the High Court could exercise power in election disputes only in the most extraordinary circumstances. The action of the Election Officer in that case to hold an election on the basis of a calendar of events issued seven years earlier although three candidates who had filed their nominations pursuant thereto, had died, was an extraordinary circumstance calling for interference. Therefore, in Gurumallappa’s case, the interference was on the peculiar facts of that case, but the Full Bench found that in Nanjundaswamy’s case no extraordinary circumstances arose to exercise discretion and interfere in the matter pertaining to improper rejection of a nomination. Hence, the writ petition was dismissed. Therefore, reliance placed on L.Ramakrishnappa’s case by the appellant is of no assistance in view of the decision of the Hon’ble

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Supreme Court in S.T.Muthusami as well as the opinion of the Full Bench in Nanjundaswamy’s case.

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the Directors cast their votes although they were ineligible. Hence, the election held on September 27, 2015 pursuant to the direction issued by the Hon’ble Single Judge is invalid. Therefore, it is contended by learned senior counsel that the direction of the Hon’ble Single Judge be modified and fresh election be held as per the amended bye-laws, according to which, only the President of the co-operative societies would be permitted to cast their vote. We do not think that such a direction could have been issued by the Hon’ble Single Judge, because the controversy in the writ petition was with regard to the rejection of nomination of the petitioner in respect of the calendar of events issued for conducting the poll on May 25, 2015. Further, the voters’ list was prepared having regard to the extant bye-laws. When the Hon’ble Single Judge has dismissed the writ petition on the ground of maintainability, the consequential direction was to conduct the election bearing in mind the rejection of nomination and to proceed from that stage onwards. Therefore, the controversy in these

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appeals cannot be enlarged so as to take note of subsequent events so as to re-do the entire exercise by keeping in mind the amendment made to the bye- laws. Hence, there is no merit in the writ appeals filed by the Presidents nine co-operative societies. The same is liable to be dismissed.

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bye-laws and not under the amended bye-laws in terms of the direction issued by the Hon’ble Single Judge. That the Hon’ble Single Judge was not right in dismissing the writ petition as not maintainable. Further, Hon’ble Single Judge ought not to have directed that the election be conducted from the stage it was interfered with by this court by granting an interim order on May 22, 2014. That there was also a change in the factual position inasmuch as there was a new Board of Management, which had been constituted in the Member Societies of respondent No.4 – Milk Union. Also, in view of the amended bye- laws, it is only the President of the Member Societies who alone could cast their votes and the directors of the said societies could not have cast their votes. Further, in the interregnum, in respect of thirteen Member Societies, the Board of Directors and the President had changed and the voters who were delegated to cast their votes in the appeal held on September 27, 2015 were neither Directors nor Presidents. That in respect of Huluvadi Milk Producers

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Co-operative Societies, the voter had died on July 08, 2014 and hence, there was no vote cast on behalf of that society when the poll was held on September 27, 2015. These aspects have not been taken note of, by the Hon’ble Single Judge. Hence, it is contended that the consequential direction be set aside and a fresh direction be issued to the Returning Officer to conduct the poll in terms of the amended bye-laws. For the reasons which we have assigned for dismissing W.A.No.4556/2015, we hold that this appeal is also liable to be dismissed.

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was dismissed as not maintainable, the interim order dated May 22, 2015 could not have had an over arching effect and thereby, permitting petitioner, who was successful in the poll held on May 24, 2015 to continue in office. Consequently, the poll conducted on May 25, 2015 has been virtually set at naught and a direction has been issued to complete the election process with effect from May 22, 2014.

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Sd/- CHIEF JUSTICE

Sd/- JUDGE

msu/*mvs/s*